Citation NR: 9716442
Decision Date: 05/08/97 Archive Date: 05/22/97
DOCKET NO. 95-36 169 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Chicago,
Illinois
THE ISSUE
Entitlement to increased evaluation for service-connected
lumbosacral strain, currently evaluated as 10 percent
disabling.
.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
James E. Arnold, Associate Counsel
INTRODUCTION
The veteran served on active duty from May 1973 to May 1975.
This matter comes before the Board of Veterans’ Appeals
(Board) on appeal from a July 1995 rating decision by the
Department of Veterans Affairs (VA) Regional Office (RO) in
Cleveland Ohio, which granted a compensable (10 percent)
evaluation for lumbosacral strain. The veteran perfected a
timely appeal which challenged the assignment of a 10 percent
rating for that disability.
CONTENTIONS OF APPELLANT ON APPEAL
The veteran essentially contends that the report of
examination by the VA medical center is incomplete, that the
proper rating rule was not used, and that his disability
should be evaluated at greater than 10 percent.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991 & Supp. 1996), has reviewed and considered
all of the evidence and material of record in the veteran's
claims file. Based on its review of the relevant evidence in
this matter, and for the following reasons and bases, it is
the decision of the Board that
the preponderance of the evidence is against an increased
evaluation in excess of 10 percent for lumbosacral strain.
FINDINGS OF FACT
1. All relevant evidence necessary for the equitable
disposition of the appeal has been obtained by the RO.
2. The veteran’s service-connected lumbosacral strain is
currently manifested by degenerative disc disease of L5-S1
with characteristic pain on motion.
CONCLUSION OF LAW
The criteria for an evaluation in excess of 10 percent for
lumbosacral strain have not been met. 38 U.S.C.A. §§ 1155,
5107 (West 1991); 38 C.F.R. §§ 4.1-4.14, 4.40-4.46, 4.71a,
Diagnostic Code 5295 (1996).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
As a preliminary matter, the Board finds that the veteran’s
claim is well grounded within the meaning of 38 U.S.C.A.
§ 5107(a). That is, the veteran is found to have presented a
claim which is not inherently implausible.
The Board acknowledges the statement made by the veteran’s
representative in the Informal Hearing Presentation (April
1997) requesting that a new VA examination be conducted in
light of an incomplete examination, dated June 1995. The
Board has reviewed the VA examination and finds it to be
complete. 38 U.S.C.A. § 5108 (West 1991). The examiner
conducted a physical examination and following his evaluation
of the veteran, was able to render a diagnosis consistent
with previous findings. The Board particularly notes that
because the examiner found the veteran to have full range of
motion, the need to make clinical findings as to degrees is
obviated. See generally Beverly v. Brown, 9 Vet.App. 402,
406 (1996). After examining the record, the Board is
satisfied that all relevant facts have been properly
developed in regard to the veteran’s claim and that no
further assistance to him is required to comply with the duty
to assist, as mandated by 38 U.S.C.A. § 5107(a).
Disability ratings are determined by applying the criteria
set forth in the VA’s Schedule for Rating Disabilities.
Ratings are based on the average impairment of earning
capacity. Individual disabilities are assigned separate
diagnostic codes. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R.
§ 4.1 (1996). Where entitlement to compensation has already
been established and an increase in the disability rating is
at issue, it is the present level of disability that is of
primary concern. Francisco v. Brown, 7 Vet.App. 55, 58
(1994).
Where there is a question as to which of two evaluations
shall be applied, the higher evaluation will be assigned if
the disability picture more nearly approximates the criteria
required for that rating. Otherwise, the lower rating will
be assigned. 38 C.F.R. § 4.7. Pertinent regulations do not
require that all cases show all findings specified by the
Rating Schedule, but that findings sufficiently
characteristic to identify the disease and the resulting
disability and above all, coordination of rating with
impairment of function will be expected in all cases.
38 C.F.R. § 4.21 (1996). Therefore, the Board will consider
the potential application of the various other provisions of
the regulations governing VA benefits, whether or not they
were raised by the appellant, as required by Schafrath v.
Derwinski, 1 Vet.App. 589, 595 (1991).
Entitlement to service connection for lumbosacral strain was
granted in a rating decision in February 1978 and a
noncompensable evaluation was assigned. The RO, in a July
1995 rating decision, increased the evaluation to 10 percent,
based on evidence of degenerative changes of the lumbosacral
spine with characteristic pain on motion. The veteran’s
lumbosacral strain is currently evaluated under 38 C.F.R. §
4.71a, Diagnostic Code 5295 (1996). Under this section,
lumbosacral strain, with characteristic pain, warrants a 10
percent evaluation. A 20 percent evaluation requires muscle
spasm on extreme forward bending and unilateral loss of
lateral spine motion in the standing position. Id.
In reviewing this case, the Board observes that VA outpatient
treatment reports dated in April 1995 reflect that the
veteran was seen with complaints of low back pain which
radiated down into the right lower extremity. Physical
examination, in relevant part, revealed that the veteran had
pain and tenderness to palpitation over the lower back. He
was able to bend the torso in all directions with difficulty
and minimal pain. The straight leg raising was to 60 degrees
with difficulty, but the strength in the lower extremities
was measured at 5/5. The assessment included chronic low
back pain with radicular symptoms.
However, when the veteran underwent a VA examination in June
1995, the veteran was described as bending over well with no
pain noted. The examiner objectively confirmed that the
veteran’s backward extension and sideward motions were
without any restriction of range of motion, although pain was
elicited on backward extension. No muscle spasm, tenderness
over the low back muscles, or straightening of the lordotic
curvature was noted. Straight leg raising was to 110
degrees, with no evidence of low back pain. The veteran
could squat and stand on his heels and toes, as well as on
each leg alternately, without any difficulty. Although there
was an absence of knee reflexes bilaterally, the ankle
reflexes were 1+, and the strength in the lower extremities
was normal. X-rays of the lumbar spine were interpreted as
showing degenerative disc changes of L5 to S1. The diagnosis
was chronic recurrent low back pain secondary to a history of
an injury, with degenerative disc disease of the lumbar
spine.
The Board notes that while these VA medical reports establish
that the veteran does have degenerative disc disease and pain
characteristic of lumbosacral strain, the clinical findings
contained in the VA examination of June 1995, revealed no
evidence of muscle spasm on extreme forward bending, or loss
of lateral spine motion in the standing position. Hence, an
increased evaluation, in excess of the prevailing 10 percent
rating under DC 5295, is not warranted. Similarly, a higher
rating is not warranted under DC 5293, as there is no
evidence of record that the veteran suffers from recurrent
attacks of intervertebral disc syndrome. In addition, a 20
percent evaluation under DC 5292 requires moderate limitation
of lumbar spine motion. Notably, however, the veteran at his
June 1995 examination was without any restriction of range of
motion. In light of the foregoing, the Board must conclude
that the veteran’s low back disability is most appropriately
evaluated at 10 percent under DC 5295. Accordingly, an
increased evaluation is not warranted.
In reaching this decision the Board considered the provisions
of 38 C.F.R. §§ 4.40 and 4.45, however, the diagnostic
criteria for a 10 percent evaluation specifically requires
consideration of pain. Hence, assigning an evaluation for
pain, as interpreted in DeLuca v. Brown, 8 Vet.App. 202
(1995), would violate the principle against pyramiding. See
Johnson v. Brown, 9 Vet.App. 7 (1996); 38 C.F.R. § 4.14
(1996).
Additionally, the clinical presentation of the veteran’s
lumbosacral strain is neither unusual or exceptional as to
render impractical the application of the regular schedular
standards. 38 C.F.R. § 3.321(b)(1)(1996). Clearly, due to
the nature of the veteran’s lumbosacral strain, interference
with the veteran’s employment was foreseeable. However, the
record does not reflect frequent periods of hospitalization
because of his service-connected disability, nor interference
with employment to a degree greater than contemplated by the
regular schedular standards which are based on the average
impairment of employment. See Moyer v. Derwinski, 2
Vet.App. 289, 293 (1992); see also Van Hoose v. Brown, 4
Vet.App. 361, 363 (noting that the disability evaluation
rating itself is recognition that the industrial capabilities
are impaired). Accordingly, the Board finds that the
criteria for submission for assignment of an extraschedular
rating pursuant to 38 C.F.R. § 3.321(b)(1) are not met. See
Bagwell v. Brown, 9 Vet.App. 337, 339 (1996); Shipwash v.
Brown, 8 Vet.App. 218, 227 (1995).
ORDER
An increased evaluation in excess of 10 percent for
lumbosacral strain is denied.
CONSTANCE B. TOBIAS
Member, Board of Veterans' Appeals
38 U.S.C.A. § 7102 (West Supp. 1996) permits a proceeding
instituted before the Board to be assigned to an individual
member of the Board for a determination. This proceeding has
been assigned to an individual member of the Board.
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991 & Supp. 1996), a decision of the Board of Veterans'
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans' Judicial Review Act,
Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The
date which appears on the face of this decision constitutes
the date of mailing and the copy of this decision which you
have received is your notice of the action taken on your
appeal by the Board of Veterans' Appeals.
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